FEDERATED PUBLICATIONS, INC. v. LANSING STATE JOURNAL, et al.

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the latest electronic versions available from the Michigan
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We granted leave in this case to determine
whether the presidential selection procedure utilized by
defendant violated the Open Meetings Act (OMA), MCL 15.261 et
seq.; MSA 14.1800 (11) et seq., and whether
application of the OMA to committees formed by the governing
boards of our public universities to assist in the selection of
university presidents is constitutional. As an initial matter,
while we would customarily begin our analysis with a discussion
of whether the OMA was violated by the conduct of the board of
trustees,[1]we are bypassing that question and moving directly to
the constitutional question because the OMA cannot be a restraint
upon the actions of defendant in this circumstance. As explained
below, we hold that the Legislature does not have power to
regulate open meetings for defendant in the context of
presidential searches at all, i.e., the Legislature is
institutionally unable to craft an open meetings act that would
not, in the context of a presidential selection committee,
unconstitutionally infringe the governing board’s power to
supervise the institution. We therefore reverse the Court of
Appeals decision and reinstate the trial court’s order granting
summary disposition for defendant.

I

John DiBiaggio resigned as president of
Michigan State University during the summer of 1992. Defendant
appointed Gordon Guyer interim president and thereafter formed a
presidential search committee (PSC), consisting of the eight
university trustees and nine additional members, to assist it in
selecting a new president. The PSC developed a statement of
qualifications and proceeded to identify potential candidates to
meet its charge of recommending final candidates to defendant by
July 1, 1993. [2]The search
process, however, ground to a halt when the MSU student
newspaper, the State News, published a confidential list of over
one hundred nominees under consideration for the presidency. In
response, defendant reconstituted the PSC to consist of four
trustees and the nine nontrustee members. The PSC then continued
its search in private.

The PSC gathered and reviewed information
regarding the candidates, eventually selecting fifteen to
interview. After completing the interviews, the PSC recommended
four candidates to defendant. Defendant released the names of
these candidates to the public. One candidate eventually
withdrew, and defendant publicly interviewed the others. Two
candidates withdrew after their interviews. Defendant considered
the remaining candidate at a July 27, 1993, meeting, but the
trustees were evenly divided regarding her candidacy.

Unable to reach a decision to elect the sole
remaining candidate, defendant requested that the PSC reconvene
and recommend additional candidates. The PSC declined to
recommend other candidates. Defendant’s chairman then contacted
M. Peter McPherson, a candidate who had withdrawn his name from
consideration after his interview with the PSC, and urged him to
reinstate his candidacy. McPherson agreed. Defendant publicly
interviewed him on August 17, 1993, and subsequently elected him
president.

Plaintiffs commenced this action shortly after
defendant reconstituted the PSC, but the trial court denied their
motion for a preliminary injunction.[3]The parties continued discovery after the conclusion of
the search and eventually filed cross-motions for summary
disposition. The trial court granted defendant’s motion and
denied plaintiffs’ motion, concluding that the PSC was not a
public body subject to the OMA, that application of the OMA to
the presidential search is unconstitutional, and that defendant
did not unlawfully delegate its constitutional authority. The
Court of Appeals reversed.[4]

The Court of Appeals reasoned that, although
courts have held that Michigan public universities are distinct
governmental bodies, coequal with the Legislature, they are not
constitutionally immune from all regulation by the Legislature.
The Court then concluded that the policy of promoting openness in
government that underlies the OMA supported application of the
act to state universities:

The longstanding public policy of this
state to open the acts of governmental officials to
public scrutiny supports the conclusion that the OMA can
be constitutionally applied to universities. The OMA is
not aimed at any activities peculiar to the university
and does not attempt to change or disturb its educational
activities. In fact, the effect of the OMA with respect
to public universities is minimal. Although it requires
that much of the process of selecting a university
president be done in public, it does not tell the board
what the criteria should be for that selection, how to
select a candidate, or whom to select as president. It
merely requires that, when interviewing candidates and
when making a detailed review of applications of
candidates who do not request confidentiality, the
university function in public meetings. It does not
divest the board of its authority to select a president.
[221 Mich App 103, 112; 561 NW2d 433 (1997).]

The Court of Appeals also determined that the
PSC violated the OMA during its search process. The Court
reasoned that the PSC was a "public body" for purposes
of the OMA because defendant empowered it by resolution to
exercise portions of defendant’s governmental authority in
selecting a president. The Court determined that the PSC violated
the OMA "when it took steps to reduce the number of
candidates in private session, when it reviewed applications of
persons not requesting confidentiality, and when it interviewed
applicants in private." Id. at 119. Finally, the
Court rejected plaintiffs’ argument that defendant unlawfully
delegated its constitutional authority to select a president
because defendant, while giving the PSC more than ministerial
duties, retained its ultimate authority.[5]

We address today the constitutional question
left open by Booth Newspapers, Inc v Univ of Michigan Bd of
Regents, 444 Mich 211, 235-236; 507 NW2d 422 (1993),[7]and conclude that application of the OMA to committees
formed by governing boards of public universities to assist in
the selection of university presidents is unconstitutional.

A

The Michigan Constitution is a limitation on
the Legislature’s power, not a grant of power to it. Advisory
Opinion on Constitutionality of 1976 PA 240, 400 Mich 311,
317-318; 254 NW2d 544 (1977). As this Court explained in In re
Brewster St Housing Site, 291 Mich 313, 332-333; 289 NW 493
(1939):

By the Declaration of Independence, all
political connection between the colonies and the State
of Great Britain was declared to be dissolved and the
colonies asserted to be free and independent States. The
several States, when organized, succeeded to all of the
legislative powers within their respective territorial
jurisdictions possessed by the Parliament of England, and
as such free and independent States they still possess
those powers, except insofar as they have been delegated
by the States to the Federal government by the
Constitution of the United States or voluntarily
restrained by the people through the Constitution of the
State.

Thus, absent a constitutional limitation, the
Legislature has the power to legislate within a particular field.
See Advisory Opinion 1976 PA 240, supra at 318; Oakland
Co Taxpayers’ League v Oakland Co Supervisors, 355 Mich 305,
323; 94 NW2d 875 (1959); Brewster St, supra at 333. In
this case, we revisit the question of the scope of the
Legislature’s power to regulate public universities.

B

The Michigan Constitution confers a unique
constitutional status on our public universities and their
governing boards. [8] Const 1963, art 8, Sects. 5 & 6. Const 1963, art 8,
Sect. 5 grants defendant broad authority over Michigan State
University, including the power to elect the president of the
university:

[T]he trustees of Michigan State
University and their successors in office shall
constitute a body corporate known as the Board of
Trustees of Michigan State University . . . . Each board
shall have general supervision of its institution and the
control and direction of all expenditures from the
institution’s funds. Each board shall, as often as
necessary, elect a president of the institution under its
supervision. He shall be the principal executive officer
of the institution, be ex-officio a member of the board
without the right to vote and preside at meetings of the
board.

Const 1963, art 8, Sect. 4, however, restricts
the board’s power to dictate its procedure, directing that
"[f]ormal sessions of governing boards of such institutions
shall be open to the public."

A constitution is made for the people
and by the people. The interpretation that should be
given it is that which reasonable minds, the great mass
of the people themselves, would give it. "For as
the Constitution does not derive its force from the
convention which framed, but from the people who ratified
it, the intent to be arrived at is that of the people,
and it is not to be supposed that they have looked for
any dark or abstruse meaning in the words employed, but
rather that they have accepted them in the sense most
obvious to the common understanding, and ratified the
instrument in the belief that that was the sense designed
to be conveyed."

To clarify meaning, we often consider the
circumstances surrounding the adoption of the provision and the
purpose it is designed to accomplish. Bolt v Lansing, 459
Mich 152, 160; 587 NW2d 264 (1998). Thus, we turn to the
historical origins of Const 1963, art 8, Sects. 4 & 5 to
discern the limits they place on the Legislature’s power to
regulate our public universities.

C

Long ago, the Legislature controlled and
managed our first public university, The University of Michigan.
Const 1835, art 10, Sect. 5; see Regents of the Univ of
Michigan v Michigan, 395 Mich 52, 63; 235 NW2d 1 (1975). This
experiment failed, prompting extensive debate regarding the
future of the university at the Constitutional Convention of
1850. Sterling v Regents of Univ of Michigan, 110 Mich
369, 374-378; 68 NW 253 (1896). Const 1850, art 13, Sect. 8
emerged from these debates, divesting the Legislature of its
power to regulate the university and placing control in an
elected board. Id. at 377-380. The provision granted the
board "the general supervision of the university, and the
direction and control of all expenditures . . . . " The
Constitution of 1850 also granted the board the power to elect a
president of the university. Id.

The University of Michigan thrived under the
leadership of its board of regents. Sterling, supra at
377. Recognizing the importance of an independent governing board
in managing state colleges and universities, Const 1908, art 11,
Sects. 7 & 8 vested control of the then-named Michigan
Agricultural College in the State Board of Agriculture.[9]State Bd of Agriculture v Auditor General, 226
Mich 417, 424; 197 NW 160 (1924); State Bd of Agriculture v
Auditor General, 180 Mich 349, 359; 147 NW 529 (1914); Bauer
v State Bd of Agriculture, 164 Mich 415; 129 NW 713 (1911).
Const 1963, art 8, Sect. 5 combined the separate provisions of
the Constitution of 1908 into one provision, granting the
respective governing bodies control over the University of
Michigan, Michigan State University, and Wayne State University. [10]The current
provision draws its language from Const 1850, art 13, Sect. 8.

This Court has long recognized that Const 1963,
art 8, Sects. 5 and the analogous provisions of our previous
constitutions limit the Legislature’s power. [11] "[T]he Legislature may not interfere with the
management and control of" universities. Regents, supra,
395 Mich 65. The constitution grants the governing boards
authority over "the absolute management of the University,
and the exclusive control of all funds received for its
use." Bd of Agriculture, supra, 226 Mich 424. This
Court has "jealously guarded" these powers from
legislative interference. Bd of Control of Eastern Michigan
Univ v Labor Mediation Bd, 384 Mich 561, 565; 184 NW2d 921
(1971).

This Court has not, however, held that
universities are exempt from all regulation. In Regents of the
Univ of Michigan v Employment Relations Comm, 389 Mich 96,
108; 204 NW2d 218 (1973), we quoted Branum v Bd of Regents of
the Univ of Michigan, 5 Mich App 134, 138-139; 145 NW2d 860
(1966):

It is the opinion of this Court that
the legislature can validly exercise its police power for
the welfare of the people of this State, and a
constitutional corporation such as the board of regents
of the University of Michigan can lawfully be affected
thereby. The University of Michigan is an independent
branch of the government of the State of Michigan, but it
is not an island. Within the confines of the operation
and the allocation of funds of the University, it is
supreme. Without those confines, however, there is no
reason to allow the regents to use their independence to
thwart the clearly established public policy of the
people of Michigan.

Legislative regulation that clearly infringes
on the university’s educational or financial autonomy must,
therefore, yield to the university’s constitutional power. Thus,
although a university is subject to the public employees
relations act, MCL 423.201 et seq.; MSA 17.455(1) et
seq., the regulation cannot extend into the university’s
sphere of educational authority:

Because of the unique nature of the
University of Michigan . . . the scope of bargaining by
[an association of interns, residents, and post-doctoral
fellows] may be limited if the subject matter falls
clearly within the educational sphere. Some conditions of
employment may not be subject to collective bargaining
because those particular facets of employment would
interfere with the autonomy of the Regents. [Regents,
supra, 389 Mich 109.]

In this case, we do not consider a generally
applicable law that implicates university financial autonomy.
Rather, we consider a law that dictates the manner in which the
university operates on a day-to-day basis. The authority of the
governing board is derived from Const 1963, art 8, Sect. 5, which
states in pertinent part:

Each board shall have general
supervision of its institution . . . .Each board shall,
as often as necessary, elect a president of the
institution under its supervision.

We hold that the application of the OMA to the
internal operations of the university in selecting a president
infringes on defendant’s constitutional power to supervise the
institution. Const 1963, art 8, Sect. 5.

Although a university is not a separate branch
of government, our decision in In re 1976 PA 267, 400 Mich
660; 255 NW2d 635 (1977), is instructive. In that case, this
Court held in a rare advisory opinion that the proposed OMA
provision applying the act to this Court during its exercise of
rulemaking authority and deliberations regarding administrative
orders was unconstitutional:

The judicial powers derived from the
Constitution include rulemaking, supervisory and other
administrative powers as well as traditional adjudicative
ones. They have been exclusively entrusted to the
judiciary by the Constitution and may not be diminished,
exercised by, nor interfered with by the other branches
of government without constitutional authorization. See Attorney
General ex rel Cook v O’Neill, 280 Mich 649; 247 NW
445 (1937). It is our opinion that 1976 PA 267 is an
impermissible intrusion into the most basic day-to-day
exercise of the constitutionally derived judicial powers.
[Id. at 663.]

Given the constitutional authority to supervise
the institution generally, application of the OMA to the
governing boards of our public universities is likewise beyond
the realm of legislative authority. Const 1963, art 8, Sect. 5.

That the OMA cannot constitutionally be applied
to the defendant’s presidential search committee is supported by
the language of Const 1963, art 8, Sect. 4. [12]The delegates to the Constitutional Convention of 1961
recognized that the decision whether to open meetings of
university governing boards to the public lay within the boards’
sphere of authority. Const 1963, art 8, Sect. 4 restricted the
boards’ authority by requiring that ‘[f]ormal sessions of
governing boards of such universities shall be open to the
public.’ The author of the provision explained its purpose:

Meetings of governing boards of the 3
major universities have been open to the public and news
media for the past 1/2 dozen years and that has been
accomplished only after a long period of negotiations. As
it stands, the public and news media are present only as
a matter of sufferance. They are invited guests of the
governing board, an invitation which could be,
conceivably, withdrawn at any time. . . . [N]ow that we
are creating by constitutional enactment 7 more such
governing boards, it would be appropriate that their
formal meetings should be conducted in public sessions.
[1 Official Record, Constitutional Convention 1961, p
1187.]

That the provision is limited to ‘formal
sessions,’ rather than all sessions, signifies that the governing
boards retain their power to decide whether to hold ‘informal’
sessions in public. Const 1963, art 8, Sect. 5, prohibits the
Legislature from intruding in this basic day-to-day exercise of
the boards’ constitutional power. Nor can application of the OMA
rest on the absence of a definition of ‘formal sessions’ in the
constitution. Unlike other provisions of the constitution, the
Legislature is not delegated the task of defining the phrase
‘formal sessions’ for purposes of Const 1963, art 8, Sect. 4.[13]

The meetings of the PSC clearly were not
"formal" sessions of defendant under the common
understanding of that term. [14] Only four trustees were members of the PSC and
participated in that phase of the presidential search. Under
Const 1963, art 8, Sect. 5, the governing board of the
university, not the Legislature, has the power to open the
meetings of a presidential search committee such as the instant
one to the public. Application of the OMA to the PSC is simply an
impermissible intrusion on defendant’s constitutional authority
to supervise the institution.[15]

Under Const 1963, art 8, Sect. 4, defendant’s
presidential selection process need not have been open to the
public except when conducted at a formal session of the board,
such as the session at which defendant elected President
McPherson. Defendant complied with the constitutional provision
in its selection of a university president. [16] Accordingly, we reverse the Court of Appeals decision
and reinstate the trial court’s order granting summary
disposition for defendant.

While I concur in the result
reached by the majority, I am nonetheless in
disagreement with both the route taken by the
majority to reach that conclusion and the width
of the path the majority elects to traverse.
Accordingly, I write separately to indicate my
views, which are somewhat more constrained than
those of the majority.

I

"[I]t is well settled in Michigan that,
‘[c]onstitutional questions will not be passed upon when other
decisive questions are raised by the record which dispose of the
case.’" Lisse v Secretary of State, 388 Mich 32,
40-41; 199 NW2d 188 (1972), quoting People v Quider, 172
Mich 280, 288-289; 137 NW 546 (1912). This longstanding rule
requires us to consider constitutional questions only as a last
resort, and to avoid such questions where a nonconstitutional
basis exists for resolving the matter. The case before us
presents the question whether defendant’s presidential search
procedure violated the Open Meetings Act (OMA). Long before we
need consider the constitutionality of the OMA, we must first
logically address the question actually before us, i.e., whether
the search in fact violated the OMA.

I am in agreement with the reasoning and
rationale of Justice Kelly’s dissent with respect to this issue,
and concur, for the reasons stated in her opinion, with her
finding that the OMA was indeed violated by the search proceeding
undertaken by defendant. Accordingly, from this point, and not
before, I am required to proceed with an analysis of the
constitutional question.[17]

II

In regard to the resolution of this
constitutional question, I find persuasive the language and
history of Const 1963, art 8, Sect. 4.[18] As noted
by the majority, a review of the official record regarding this
provision would tend to indicate that the framers considered
that, where they were constitutionally creating a number of
additional university governing boards, they should
constitutionally include a provision opening the formal meetings
to the public.[19]The obvious
logic of this is that the framers thought that such an opening
would need to be made constitutionally. Were that the case, a
provision such as the OMA, enacted by the Legislature, would be
insufficient to forcibly open a meeting of the board of a
constitutional university. Further, where the framers have
determined that only formal sessions of the board need be open,
it would appear both that the defendant board complied with the
constitutional provisions, and that an attempt to apply the OMA
to force further openings of sessions that were less than formal
sessions of the board would be constitutionally prohibited.

Accordingly, I am able to agree with the
majority that, when applied to the facts of this case, the OMA
unconstitutionally invades the province of the defendant board to
hold less than formal meetings in a closed setting. Because I am
not persuaded of the need to rule on issues not directly before
us, I would proceed no further.

Thus, I dissent from the majority’s failure to
ascertain whether the OMA was violated by defendant’s actions,
and from the majority’s departure from our longstanding rule of
judicial restraint regarding constitutional questions. For the
reasons stated in Justice Kelly’s opinion on this issue, however,
I find defendant’s actions to have violated the OMA, and thus
would address the constitutional question. Given the language and
history of Const 1963, art 8, Sect. 4, it appears that the
framers constitutionally required formal meetings of university
governing boards to be open, and by this action indicated that
meetings of a less than formal nature could be held in a closed
setting. The existence of these constitutional parameters leads
to the conclusion that a less than constitutional attempt to
invade the province of these provisions (i.e., a legislative
enactment such as the OMA) must fail. Accordingly, I join in the
result, but only a portion of the reasoning, of the majority on
this issue.

Kelly, J. (dissenting).

This Court granted leave to determine whether
the presidential selection procedure utilized by defendant
violated the Open Meetings Act (OMA), MCL 15.261 et seq.;
MSA 14.1800(11) et seq. Also at issue is whether
application of the OMA to committees formed by the governing
boards of our public universities to assist in the selection of
university presidents is constitutional.

I respectfully disagree with
the majority’s decision to bypass the question
whether the OMA was violated. That question must
necessarily be answered before addressing whether
application of the OMA to defendant is
constitutional.[20]

I would affirm the judgment of
the Court of Appeals on both questions and hold
(1) that the OMA applied to activities of the
presidential search committee because it was a
public body exercising a government function, and
(2) the state constitution is not violated by
applying the OMA to defendant’s search committee.

Defendant’s
Violation of the Open Meetings Act

The Court of Appeals held that
the search committee was a "public
body" under the OMA and that, therefore, the
OMA applied to its activities. I agree.

Under the act, all decisions of
a public body must be made at a meeting open to
the public. MCL 15.263(2); MSA 4.1800(13)(2). The
OMA defines a "decision" as

a determination,
action, vote, or disposition upon a
motion, proposal, recommendation,
resolution, order, ordinance, bill, or
measure on which a vote by members of a
public body is required and by which a
public body effectuates or formulates
public policy. [MCL 15.262(d); MSA
4.1800(12)(d).]

It defines a public body as

any state or local legislative or
governing body, including a board, commission, committee,
subcommittee, authority, or council, which is empowered
by state constitution, statute, charter, ordinance,
resolution, or rule to exercise governmental or
proprietary authority or perform a governmental or
proprietary function, or a lessee thereof performing an
essential public purpose and function pursuant to the
lease agreement. [MCL 15.262(a); MSA 4.1800(12)(a).]

The defendant Board of Trustees empowered the
presidential search committee by resolution to exercise portions
of the governmental authority of the board to select the
university’s president. The committee reviewed and studied
candidates and reduced the number to be considered by the board
as a whole. The parties are in agreement that the search
committee narrowed the original field of candidates from over 150
to 4. I believe that its activity in this winnowing process was
more than ministerial in nature, being that it involved review,
discussion, and evaluation of the relative merits of the
candidates. It was a form of decision making.

Once a committee is determined to be a public
body, a meeting of a quorum of that body is subject to the act.
In this case, the search committee was composed of four trustees
and nine lay members. Thus, seven members constituted a quorum.
Alternatively, if only trustees are considered, a quorum would be
three. However, even a subquorum committee has been held to be
subject to the OMA.

For example, in Booth Newspapers, Inc v Univ
of Mich Bd of Regents,[21] this Court
specified that the intent of the Legislature in enacting the OMA
was to remedy the ineffectiveness of the 1968 open meetings
statute and "promote a new era in governmental
accountability." Id. at 222. We explained that
"[t]he deliberation of public policy in the public forum is
an important check and balance on self-government." Id.
at 223. To further this policy, Michigan courts have
"historically interpreted the statute broadly, while
strictly construing its exemptions and imposing on public bodies
the burden of proving that an exemption exists." Id.

We held that the Board of Regents of the
University of Michigan is a public body under the OMA. Id.
at 225. We continued:

The selection of a university president
is one of the board’s most important exercises of
governmental authority. If it establishes any form of
subcommittee and empowers that subcommittee by
"resolution or rule" to exercise this
particular governmental authority, then that subcommittee
is also a "public body" within the meaning of
the act. [Id. (citations omitted).]

Booth Newspapers further held that
selection of a president, whether by a one-person committee, some
other committee, or the whole board, constitutes the exercise of
governmental authority. Whatever the composition of the selection
body, it is a public body under the OMA. Id. at 226.

The search committee in this case was composed
of fully one-half of the members of the Board of Trustees. It was
given the same authority as that given the one-person committee
in Booth Newspapers. Applying the analysis in Booth
Newspapers, I conclude that the search committee in this case
was a public body. Moreover, it engaged in decision making by
determining which candidates would be presented as finalists to
the board.

Therefore, both the reasoning in Booth
Newspapers and a straightforward reading of the OMA indicate
that the presidential search committee was a public body. As
such, the committee violated the OMA when it reduced the number
of candidates in private session, when it reviewed applications,
and when it interviewed applicants in private. Accordingly, I
would affirm the judgment of the Court of Appeals on this issue.

The Constitutionality of
Applying the OMA in this Case

The majority holds that application of the OMA
to the internal operations of the university in selecting a
president infringes on the university’s constitutional power to
supervise itself. I disagree.

The Michigan Constitution states in part:

[T]he trustees of Michigan State
University and their successors in office shall
constitute a body corporate known as the Board of
Trustees of Michigan State University. . . . [It] shall
have general supervision of its institution . . . [and]
shall, as often as necessary, elect a president of the
institution under its supervision. [Const 1963, art 8,
Sect. 5.]

It also requires that formal sessions of
governing bodies of institutions, including Michigan State
University, be open to the public. Const 1963, art 8, Sect. 4.[22]

However, our primary focus is on the plain
meaning of the constitution’s language, as understood by the
people who voted for it. Livingston Co, supra. The
language must be read according to its natural, common, and most
obvious meaning. Macomb Co, supra. Courts may place
themselves in the position of the framers of the constitution to
ascertain its meaning at the time it was written. Committee
for Constitutional Reform v Secretary of State, 425 Mich 336,
342, 389 NW2d 430 (1986). Reliance on the records of the
constitutional convention is warranted only if the language of
the constitution is unclear or if there is a "recurring
thread of explanation binding together the whole of a
constitutional concept." Univ of Mich Regents v Michigan,
395 Mich 52, 60; 235 NW2d 1 (1975). Due deference is to be given
to contemporaneous or longstanding interpretations of the
constitution by the Michigan Supreme Court. McPherson v
Secretary of State, 92 Mich 377, 383; 52 NW 469 (1892).

Although state universities are unquestionably
distinct governmental bodies, coequal with the Legislature, they
have not been held constitutionally immune from all regulation by
the Legislature. In W T Andrew Co v Mid-State Surety Corp,[23] we held that, although the University of Michigan was a
constitutionally created corporation, the public works bond
statute could be applied to it through the Legislature’s police
power. Statutes designed for the benefit of society as a whole
can be imposed on a constitutionally created university when they
pose no direct threat to the university’s financial autonomy. Id.

We also held that the University of Michigan
was subject to a state law in Univ of Mich Regents v
Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973).
We found that the public employees relations act could be applied
to state universities without violating their constitutional
autonomy. Id. at 108. We referred to Branum v Univ of
Mich Regents,[24] holding that, whereas universities have independence in
educational matters, they are still a part of the state
government. Therefore, the Legislature can waive the
universities’ rights to governmental immunity, as it did for
other bodies in the state government. Id. at 137-138. In
particular, we stated:

It is the opinion of this Court that
the legislature can validly exercise its police power for
the welfare of the people of this State, and a
constitutional corporation such as the board of regents
of the University of Michigan can lawfully be affected
thereby. The University of Michigan is an independent
branch of the government of the State of Michigan, but it
is not an island. Within the confines of the operation
and the allocation of funds of the University, it is
supreme. Without these confines, however, there is no
reason to allow the regents to use their independence to
thwart the clearly established public policy of the
people of Michigan. [Id. at 138-139.][25]

While I agree with the majority that "the
Legislature may not interfere with the management and control
of" universities,[26] I disagree with its conclusion that the OMA infringes
defendant’s constitutional power to supervise the institution.
The OMA is not aimed at any activities peculiar to the university
and does not attempt to change or disturb its educational
activities. Although it requires that the process of selecting a
university president be done in public, it does not tell the
board what the criteria should be for selection. It does not
dictate the process or the person to be selected. What it does
require is, when interviewing candidates and when making a
detailed review of applications, that the university function in
public meetings.

I cannot conclude that this requirement divests
the board of its authority to select a president. The majority
holds that application of the OMA to the presidential selection
process infringes defendant’s constitutional power to supervise
the university. However, it makes no attempt to explain what
constitutes the infringement. I submit there is none.

The majority’s reliance on In re 1976 PA 267,[27] is misplaced. In that case, this Court noted that the
powers of government were divided among three branches of
government pursuant to Const 1963, art 3, Sect. 2. It further
noted that the separation of powers set forth in the constitution
was "designed to preserve the independence of the three
branches of government." Id. at 662. Incontestably,
the judiciary is one branch. Although various cases have stated
that public universities are government branches coequal with the
Legislature, the constitution contains no provision that elevates
them to a separate branch, like the judiciary.[28] Since autonomous state universities have not achieved
that status under the constitution, and In re 1976 PA 267
dealt with a separate branch, it is inapplicable to this case.

Also, the majority states that
"[a]pplication of the OMA to the governing boards of our
public universities is . . . beyond the realm of legislative
authority." Slip op at 16-17. The issue here is whether the
OMA applies to only one function of the boards, the selection of
the universities’ presidents. The majority provides no basis for
concluding that the OMA has no application to the remaining
functions of the boards. Its statement in this regard could well
be misleading to the public.

"Sunshine laws," such as the OMA,
were adopted in Michigan as early as 1895. Wexford Co
Prosecutor v Pranger, 83 Mich App 197, 201, n 5; 268 NW2d 344
(1978). Their purpose is to prevent real and imminent danger of
irreparable injury, triggered when government bodies act in
secret. Id. In that regard, the purpose of the OMA is to
"provide the public with fuller disclosure of the acts of
government officials." Rochester Bd of Ed v State Bd of
Ed, 104 Mich App 569, 582; 305 NW2d 541 (1981).

The courts and the Legislature have sought to
maintain the autonomy of the constitutional universities.
However, we have held repeatedly that our state-financed
universities are public institutions that must function, also,
within the confines of state laws. While "these two
functions can touch or overlap each other, . . . understanding
and good will is necessary that the people whom both elements
represent be best served." Regents, 395 Mich 76.

Open government best serves the people of
Michigan. I would affirm the judgment of the Court of Appeals and
hold that the OMA may be constitutionally applied to
constitutionally established universities in their selection of a
president.

The Presidential Search Committee shall
recommend to the Board of Trustees by July 1, 1993 a
slate of final candidates for President of Michigan State
University. The Board of Trustees will select and appoint
the President.

Members of the University community
(trustees, faculty, staff, alumni, and students) and
other persons interested in the University must submit
the name of any person they wish considered as a
prospect, nominee, or applicant to the Search Committee
for review. The Search Committee shall not eliminate a
candidate from consideration until such time as a
President has been selected. The Board may add to the
list of final candidates individuals reviewed by the
Search Committee and not included in the list of final
candidates by the Search Committee.

In carrying out its responsibilities
the Presidential Search Committee shall:

1. Solicit comments from interested
parties on the needs of the University and the
qualifications for the next President.

2. Hold public hearings on the needs of
the University and the qualifications for the next
President.

3. Develop a statement of the needs of
the University and the qualifications of the next
President to be used to recruit, screen, interview, and
evaluate candidates. . . .

4. Actively solicit nominations and
applications from a diverse group of well-qualified
persons.

5. Develop rules and procedures for the
Search Committee to receive nominations and applications,
screen candidates, check references, evaluate candidates,
interview candidates, and recommend candidates to the
Board of Trustees.

6. Carry out the University’s
commitment to principles and polices of pluralism and
diversity.

7. Carry out the search in a manner
that will enhance the stature of Michigan State
University.

8. Observe the requirements of
Michigan’s Open Meetings Act and Freedom of Information
Act.

9. Respect the confidentiality of
candidates to the extent permitted by law.

10. Inform the Board of Trustees, the
University community, and the media about the progress of
the search.

11. Coordinate efforts with those of
the consultants of Heidrick and Struggles Inc. who have
been retained by MSU to assist in the search.

12. The Search Committee will be
discharged by action of the Board upon completion of its
responsibilities.

[7]The dissent in Booth,
supra at 251, reached the constitutional question, concluding
that application of the OMA in this context is unconstitutional.

[8]This Court has
described the governing boards’ status as ‘the highest form of
juristic person known to the law, a constitutional corporation of
independent authority, which, within the scope of its functions,
is co-ordinate with and equal to that of the legislature.’ Bd
of Regents of the Univ of Michigan v Auditor General, 167
Mich 444, 450; 132 NW 1037 (1911).

[9] Defendant came
into existence by constitutional amendment in 1959. 1959 PA JR No
2. The Legislature changed the name of defendant’s institution to
Michigan State University in 1963. 1963 (2nd Ex Sess) PA 50.

[10]The people
granted constitutional status to Wayne State University in 1959.
1959 PA JR No 3. Const 1963, art 8, Sect. 6, confers
constitutional status on our other public universities, but
provides for appointed, rather than elected, governing boards.

[12]The concurrence
does not explain how Const 1963, art 8, Sect. 4, which applies
only to the governing board, applies to a search committee that
includes both members of the board and other members of the
university community. Given its composition, it is wrong to
characterize the meetings of the committee as meetings of the
board. Our decision today rests on the board’s supervisory power
under Const 1963, art 8, Sect. 5. Const 1963, art 8, Sect. 4
guides us in determining whether Const 1963, art 8, Sect. 5
grants the board the authority to decide whether to open meetings
of the search committee to the public.

Meaning and effect can be given to the
last sentence of Article VIII, Sec. 4 by interpreting the
phrase ‘formal sessions’ as meetings or sittings of the
respective governing bodies held in accordance with
established rules of such bodies for the transaction of
business.

Therefore, . . . whenever the governing
board of an educational institution of higher learning is
convened in accordance with established rules of such
body for the transaction of business, it must convene in
public session to which the members of the public are to
be admitted. Private or executive meetings not held in
accordance with established rules or where no business of
the board is transacted are not formal sessions.

The Attorney General’s attempt to define the
term reveals that the determination of what constitutes a
‘formal’ or ‘informal’ session lies within the governing boards’
sphere of authority. This Court would apply the most deferential
standard when reviewing the board’s definition of ‘formal
session,’ limited to determining whether it bears any relation to
the purpose of Const 1963, art 8, Sect. 4. See, generally,
Graglia, United States v Lopez: Judicial review under the
Commerce Clause, 74 Tex L R 719, 725-726 (1996).

[15]Plaintiffs’
arguments regarding the policy reasons for requiring an open
presidential search, and open government in general, are
irrelevant to our resolution of this case because the
constitution settles the question by limiting the Legislature’s
power to regulate universities:

[T]he Court is not called upon to give
its opinion as to whether the legislation in question is
good public policy and the best part of wisdom for the
Legislature and the universities to follow. We are asked
only whether the legislative conditions invade the
constitutional jurisdiction of the universities.
Therefore, our conclusions based on the Constitution and
the foregoing precedents and our analysis of the lessons
they teach can be seen only in that perspective. [Regents,
supra, 395 Mich 76.]

[16]In light of our
disposition of the constitutional issue, we do not consider
whether the PSC would otherwise qualify as a ‘public body’ for
purposes of the OMA.

[17]Traditionally,
we have, as noted above, exhibited a great reluctance to resolve
constitutional questions, and done so only when that was clearly
required. Respect for both our constitution and the acts of our
Legislature, as well as concepts of judicial restraint, demand no
less. The majority appears to act under the theory that the
constitutionality of the OMA is relevant to whether the
Legislature has the power to legislate in a particular area. Of
course this is true. The majority’s theory strays, however, in
implying we should thus inquire about the constitutionality of an
act before considering its effects, since, if it is
unconstitutional, it must have no effect. This truism hardly
justifies the underlying suggestion, which would, effectively,
replace our longstanding rules of judicial restraint and
constitutional reluctance with a mandate to address
constitutional questions as a preliminary matter of statutory
construction. I both challenge the need for such an approach and
fear the results of such unwarranted zeal.

[18]I specifically
do not rely on In re 1976 PA 267, 400 Mich 660; 255 NW2d
635 (1977), because I find the opinion, which dealt with the
interrelation of the judicial and legislative branches, to be
distinguishable. Given my reliance on the language of Const 1963,
art 8, ? 4, I need not reach any question regarding the
applicability of our decisions concerning separate branches of
government to university boards.